The ACLU of Hawai‘i has sent a demand letter to County of Hawai’i government offices that oversee the issuance of motor vehicle licenses alleging religious discrimination and seeking a change in policies.

The letter comes after Hilo resident and small business owner Laycie Tobosa endured an 18-week delay while trying to renew her county issued driver’s license. The ACLU alleges that the delay was “simply because she is a practicing Muslim.”

The letter also demands that the Hawai‘i County DMV change what the organization is calling “unconstitutional policies,” which they violate the First Amendment to the US Constitution. Cautionary letters have also been sent to Honolulu, Maui, and Kauaʻi counties seeking confirmation that they do not impose similar policies.

According to the ACLU, Tobosa is a Muslim who wears a hijab – a head scarf – for religious purposes. The scarf shows her face, but covers her hair and her ears. The ACLU detailed what happened saying:

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“While the County of Hawai‘i routinely allows non-religious applicants to have their photos taken for driver’s licenses with their ears covered, when Ms. Tobosa visited the Hawai‘i County DMV to renew her driver’s license, she was not treated in the same way. Instead, because she would not agree to expose her ears from beneath her hijab when taking her identification photograph, she was held in line for hours, and ultimately granted only a provisional driver’s license, which allowed her to drive but could not be used as a form of identification.

“Employees at the Hawai‘i County DMV repeatedly told her that the federal Real ID Act of 2005 required that her ears be visible in the identification photograph for her to be eligible for a full driver’s license, even though the US Department of Homeland Security has provided guidance stating otherwise. After eighteen weeks of pleading and protestation, and after obtaining a written declaration from the University of Hawai‘i at Mānoa Department of Religion that “confirmed” her religious beliefs, the Hawai‘i County DMV granted her a full driver’s license.”

The County of Hawaiʻi issued a press release on Tuesday afternoon responding to the report saying:

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Initially, the County followed the REAL ID requirements in place at the time regarding how an applicant’s photo should appear; the requirements at the time stated that “(t)he face from crown to the base of the chin, and from ear-to-ear, shall be clearly visible and free of shadows. Veils, scarves or headdresses must not obscure any facial features and not generate shadow.”

The Federal Department of Homeland Security, which set forth the REAL ID laws, updated its own interpretation of the requirements regarding head coverings. The updated interpretation of the law was not immediately conveyed to the State or the County.

“As soon as the State and County became aware of the new interpretation of the law, Ms. Tobosa was immediately issued a full REAL ID compliant driver’s license on April 18, 2018,” said Naomi O’Dell, VRL Administrator. “Since that time, we have been consistently following that interpretation.”

Ms. Tobosa first applied for a renewed license on Feb. 1, 2018, and was issued a temporary license as a matter of course, pending the processing of a permanent, plastic license.

“There was a lot of discussion with the applicant and the State Department of Transportation as we tried to clarify the rules and carry them out correctly,” O’Dell said.

“The County’s response is misleading. It seeks to justify its violations of the Constitution by claiming they were unaware of the Department of Homeland Security’s guidance on the REAL ID Act and religious accommodation – which were in fact published on the DHS website as early as 2016. The County of Hawaiʻi’s discriminatory enforcement of the REAL ID Act’s photo requirements against Muslim women and women wearing headscarves—but not against people whose hair naturally covers their ears—violates the First Amendment to the Constitution regardless of County officials’ flawed understanding of what “ear-to-ear” means.

Finally, when Ms. O’Dell states that as soon as the County became aware of the correct interpretation of the DHS rules, it issued the license, she neglects to mention that it was Ms. Tobosa herself who sent her the link to the DHS’s guidance on April 18, 2018, after which Ms. O’Dell, without explanation, suddenly reversed course that same day and told Ms. Tobosa that her application would be granted. It is only thanks to Ms. Tobosa’s diligence and persistence that the County’s longstanding misinterpretation and unconstitutional application of what the REAL ID Act requires was brought to light.

Regardless of how this profound misinterpretation of the REAL ID Act arose, we are glad that the County is now acknowledging this error, and are hopeful that it will fully comply with our demand letter and treat all who enter the DMV with respect and equality.”

In the ACLU’s initial press release. Staff Attorney Wookie Kim, who worked on the matter, said:

“The Hawai‘i County DMV’s policies violate the First Amendment, plain and simple. Most troubling is the DMV’s requirement that people with religious beliefs—and only such people—engage in an onerous process with a third-party entity (in this case, the University of Hawai‘i) to prove that their religious beliefs are valid. Not only is this demeaning and time-consuming, but the First Amendment prohibits the government from burdening one’s ability to exercise religion in this way. Also concerning is the Hawai‘i County DMV’s failure to recognize that the Department of Homeland Security—which is the very federal agency charged with enforcing the Real ID Act—has explicitly stated that the law does not require one’s ears to be exposed. That the DMV appears to be permitting non-religious applicants and applicants of other religious faiths to keep their ears covered raises serious questions about whether the DMV is unconstitutionally singling out Muslim applicants. In light of recent events, it is more important than ever to scrutinize the way the government treats religious minorities, as we have done in Ms. Tobosa’s case.”

In the demand letter, the ACLU is seeking the following:

the County to remove the policy of requiring ID-applicants to obtain letters from the University of Hawaiʻi Department of Religion “confirming” their religious beliefs;

ensure that its rules, policies, and procedures adhere to the US Department of Homeland Security’s guidance on the REAL ID Act; and

train all personnel in the equal and constitutional application of rules to everyone, regardless of religious belief.

No financial damages or compensation are sought in the demand letter.

In a press release statement, Laycie Tobosa said:

“We have rights as Americans and it is important that we hold people in authority accountable when they violate those rights. I am born and raised in Hawai‘i. Hilo is home. It is where I am from, where my kids will grow up and where I will forever return to. Hawai‘i is known to be one of the most diverse places in the world. Here we treat everyone with aloha no matter where you are from and being Muslim or any other religion should be no different. I knew something wasn’t right when I was approved by the federal government for a passport while wearing my head scarf, but was denied a driver’s license on the county level. I am grateful to my friends and family, and even people who I don’t personally know, for all of their help, guidance and support during this very trying process, and I am glad that I finally obtained my full driver’s license. I just want the next Muslim woman, or any other person of any religion, going into that office to be treated with more respect than I was and to not be discriminated against for exercising their right as an American to freedom of religion.”

The ACLU has given the County of Hawai‘i until Nov. 1, 2018 to respond with their plan for correcting the items outlined. The ACLU has also requested that Honolulu, Maui, and Kauaʻi counties respond with a letter confirming that they do not impose similar policies.